An Uncomfortable Silence: James Comey, the FBI and Racial Profiling

On Thursday, July 18th, the Senate Judiciary Committee voted unanimously to approve the nomination of James Comey as FBI director. The nomination will now be voted on by the entire Senate. Unlike other confirmations in recent memory Comey's has advanced smoothly, and he is almost certain to be confirmed in the coming week.

Comey's confirmation will come amid a vigorous national debate around racism and racial profiling in law enforcement. Unfortunately, though Comey has made public comments that suggest a tacit endorsement of racial profiling, neither the media nor the Senate has asked him to address these issues. Those who believe in civil liberties and racial justice should find this troubling.

With dual credentials as a seasoned prosecutor and supposed civil liberties hero, Comey has inspired confidence on both sides of the aisle. Still, many Judiciary Committee senators used his confirmation hearing two weeks ago to probe questionable aspects of his background and push for reforms within a secretive federal agency. As a result, Comey has now said on record that he considers waterboarding an illegal form of torture, that his private-sector background will not discourage him from fighting white-collar crime, that he will work for greater transparency around Foreign Intelligence Surveillance Act (FISA) Court decisions, and that he is committed to protecting government whistleblowers. These discussions will set the tone of Comey's tenure as FBI director following his (likely) confirmation, and his answers will be crucial tools for future civil liberties advocacy.

And so it was disconcerting to hear the complete silence in the confirmation hearing around issues of racial profiling by the FBI, and by agencies Comey has led in the past. It was especially uncomfortable at several moments in the hearing when Comey and the senators started talking about racial profiling -- without acknowledging or perhaps even realizing it. Let's read between the lines of a few of those conversations:

Senator Cruz: "I have been concerned about the current administration's balance of the rights of law-abiding citizens on the one hand, and the willingness to pursue serious terrorist threats on the other... Do we have your commitment that you would not let political correctness impede efforts to connect the dots and prevent terrorism?"

Mr. Comey: "Certainly."

From the context of his comments, it's clear that Cruz was really asking: will Comey maintain, and even scale up, the profiling of Muslims? The FBI is hardly known for paralyzing political correctness; on the contrary, reports about FBI profiling of Muslims abound. Using informants and ethnic mapping, the FBI has performed broad, warrantless surveillance of communities and institutions, including mosques and student organizations. It has also engaged in what many view as entrapment of vulnerable Muslim individuals, providing them with ideas and weapons for terrorist acts with the aim of arresting them for those acts. These tactics threaten Muslim Americans' first amendment rights, and have caused a broad mistrust of law enforcement in Muslim communities.

Comey's straightforward "certainly" is especially troubling in an era when the Department of Justice's 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, which directs the behavior of FBI agents, contains large loopholes that fail to protect Muslims and other groups commonly perceived as potential "terrorists." The FBI needs a leader who acknowledges the pervasiveness of religious and ethnic profiling, and who reins in this destructive practice instead of condoning it.

Senator Klobuchar: "I know one of the things that hasn't come out is the work that you did in Richmond when you started Project Exile, a successful program that involved federal, state, and local partnership... Can you talk about that work and how that will inform your work as head of the FBI?"

Comey: "Richmond, Virginia, had a horrific violent crime problem, isolated especially in the minority community. And the idea behind Project Exile was, what if we used the federal penalties that came with gun possession offenses -- possession by a felon, possession by a drug user, drug dealer, stiff penalties -- what if we use those to try and change criminal behavior and make the gun a liability in the eye of a criminal? ... As we talked about earlier in response to other questions, the FBI has a vital role to play in criminal enforcement."

Comey boasted in the hearing about his success in lowering Richmond's murder rate through Project Exile, a rare gun control program endorsed by conservatives. As he mentions above, Project Exile targeted the "minority community" and slapped felons in possession of guns with strict mandatory minimum sentences in federal prisons. Though a 2003 study from the University of Chicago found the program to have no impact on violence, it was replicated around the country, one of several mandatory-minimum laws that have packed federal prisons with young men of color. Representative Bobby Scott of Virginia and the Congressional Black Caucus opposed the expansion of the program in 2001, arguing that "minorities were substantially more likely than whites under comparable circumstances to receive mandatory minimum sentences."

In short, Project Exile promoted ineffective and discriminatory policing, and Comey's failure to acknowledge this fact bodes poorly for FBI partnerships with state and local law enforcement under his leadership.

In fact, the FBI already engages in partnerships that have promoted racial profiling and endangered crucial relationships between communities and local police. Secure Communities (S-Comm), an immigration-enforcement collaboration between the FBI, Immigration and Customs Enforcement (ICE), and state and local police, recently became mandatory throughout the United States at the behest of the FBI. The FBI considers S-Comm useful to its Next Generation Identification program, which aims to collect biometric data on all people in the United States. As such, it has pushed for S-Comm's nationwide implementation, despite opposition from local leaders and evidence that the program disproportionally targets Latinos and diminishes Latinos' cooperation with police. The FBI has been too willing to sacrifice public safety and equal treatment in the name of intelligence gathering, and Comey should be pushed to rethink the agency's priorities.

The country is reeling following George Zimmerman's acquittal, and in the days leading up to Comey's final confirmation our leaders will be remembering Trayvon Martin and talking about racial profiling. President Obama and Attorney General Holder have discussed their experiences with profiling; NYPD chief Ray Kelly, a potential nominee for Department of Homeland Security Director, is already being challenged for his profiling record. Comey must not be confirmed to one of the United States' most powerful law enforcement positions without addressing this issue.